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Rami Karimi v. Gmac Mortgage; Ets Services

November 28, 2011

RAMI KARIMI,
PLAINTIFF,
v.
GMAC MORTGAGE; ETS SERVICES, LLC; AND DOES 1-100, INCLUSIVE,
DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING MOTION TO DISMISS WITHOUT LEAVE TO AMEND

Before the Court is Defendants GMAC Mortgage, LLC ("GMAC") and Executive Trustee Services, LLC's ("ETS") Motion to Dismiss Plaintiff's First Amended Complaint. ECF No. 30 15 ("Mot."); see also ECF No. 36 ("Reply"). Plaintiff opposes this motion. ECF No. 34 ("Opp'n"). 16 Pursuant to Civil Local Rule 7--1(b), the Court deems this motion suitable for disposition without 17 oral argument. Therefore, the hearing on the motion set for December 1, 2011, is VACATED. 18

Having considered the submissions of the parties and the relevant law, the Court GRANTS 19 Defendants' motion to dismiss without leave to amend. 20

I.Background

A.Defendants' Request for Judicial Notice

When considering a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), "all allegations of material fact are taken as true and construed in the light most favorable 24 to the nonmoving party." Facebook, Inc. v. MaxBounty, Inc., 274 F.R.D. 279, 282 (N.D. Cal. 25 2011) (citing Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337--338 (9th Cir. 1996)). As a 26 general rule, a district court may not consider any material beyond the pleadings in ruling on a 27 12(b)(6) motion. Lee v. Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). However, a court may 28 take judicial notice of matters of public record outside the pleadings. Id. at 689. In this case, Defendants request judicial notice of four documents recorded with the Santa Clara County 2 Recorder's Office in connection with Plaintiff's mortgage: (1) the Deed of Trust; (2) the 3 Substitution of Trustee; (3) the Notice of Default and Election to Sell Under Deed of Trust; and (4) 4 the Notice of Trustee's Sale. ECF No. 31, Request for Judicial Notice ("RJN"), at 2 & Exs. A-D. 5 6 of accurate and ready determination by resort to sources whose accuracy cannot reasonably be 7 questioned." Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 8

A district court may take notice of facts not subject to reasonable dispute that are "capable

1993). The Court concludes that the public documents submitted by Defendant are not subject to 9 reasonable dispute and are proper subjects of judicial notice. See Nguyen v. Bank of Am. Nat. 10

Ass'n, 11-CV-03318-LHK, 2011 WL 5574917, at *6 n.2 (N.D. Cal. Nov. 15, 2011)(taking judicial notice of nearly identical documents). Accordingly, the Court GRANTS Defendants' request for of California judicial notice.

15 of California, County of Santa Clara, against Defendants GMAC, ETS, and 100 Doe Defendants. 16 2011, under the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. Id. Plaintiff's original 18 complaint asserted seven claims for relief under California law: (1) declaratory relief; (2) wrongful 19 foreclosure; (3) breach of the covenant of good faith and fair dealing; (4) breach of fiduciary duty; 20 (5) negligence; (6) negligent infliction of emotional distress; and (7) quiet title. Compl., ECF No. 1 21

On August 2, 2011, the Court dismissed, with leave to amend, all of Plaintiff's claims as pled in the original complaint. ECF No. 27. 24

B.Factual and Procedural Background

Plaintiff filed the original complaint in this case on January 13, 2011, in the Superior Court Notice of Removal, ECF No. 1, at 2. Defendants removed the case to this Court on February 28, 17 Ex.1, at 3-6. 22

Plaintiff filed his First Amended Complaint "FAC" on August 23, 2011. ECF No. 29. The FAC contains only two claims for relief: (1) wrongful foreclosure; and (2) declaratory relief. 26

The FAC alleges that on or about December 8, 2006, Plaintiff refinanced his home in Los Gatos, California by entering into a mortgage loan transaction with GreenPoint Mortgage Funding, 28 Inc., ("GMF") for $1,032,000. See FAC ¶ 8; Deed of Trust, RJN Ex. A, at 2. The mortgage loan 2 transaction consisted of a Note and a Deed of Trust ("DOT") securing the property. FAC ¶ 8. The Deed of Trust named Marin Conveyancing Corp. as the original trustee and Mortgage

Electronic Registration Systems, Inc. ("MERS") as beneficiary. Deed of Trust, at 2. Although the 5 original complaint alleged that the loan and/or servicing was later transferred to GMAC, Compl. ¶ 6 9, the FAC alleges that Plaintiff has "never been provided with any evidence that the full and 7 unencumbered interest in the actual mortgage loan, neither the Note nor DOT, was ever transferred 8 from the original lender to any person or entity." FAC ¶ 9. 9

On June 25, 2010, ETS, acting as agent for MERS, recorded a Notice of Default on

Plaintiff's mortgage with the Santa Clara County Recorder's Office, stating that Plaintiff was $55,665.74 in arrears as of June 24, 2010. Notice of Default, RJN Ex. C, at 1-2. Plaintiff alleges

that he never entered into any agreement of any kind, oral or written, with ETS, and that the Notice 13 of Default does not state that ETS was the duly appointed trustee. FAC ¶¶ 12, 14. GMAC then Plaintiff alleges that this substitution was in violation of the Deed of Trust, which only allowed the 16 lender to appoint a successor trustee. FAC ¶ 16. Plaintiff also alleges that GMF securitized the 17 subject loan in 2006. FAC ¶ 24. Plaintiff further alleges that he "has never been provided with any 18 assignment or other documentation which demonstrate that GMAC or ETS acquired the full and 19 unencumbered interest in the mortgage loan from the original lender; and had [sic] never been 20 provided with evidence that anyone purchased or acquired the loan from the original lender; or that 21 the original lender actually and physically transferred the loan to any person or entity; or that any 22 of those entities actually took possession and ownership of the mortgage loan from any other 23 entity." FAC ¶ 20. 24

On October 19, 2010, ETS noticed a Trustee's Sale of the property, set to occur on November 18, 2010. Notice of Trustee's Sale, RJN Ex. D, at 1. Plaintiff alleges that GMAC and 26 Trust and therefore there is no evidence that the foreclosure was instituted ...


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